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After Supreme Court limits federal ability to combat climate change, states step in

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The Supreme Court’s restriction of the Environmental Protection Agency’s ability to regulate greenhouse gas emissions has led to calls for governors in blue states to launch initiatives to combat climate change.

“We’ve got to double down, quadruple down, here in California and in blue states all across America,” California Gov. Gavin Newsom, a Democrat, said on June 30, in response to the ruling handed down that day in West Virginia v. EPA, which held that the EPA may not require electric utilities to move away from coal-fired power plants.

And in fact states do have considerable power to reduce the emissions causing climate change, since they are actually the primary regulator of the companies that deliver electricity to consumers.

“Constitutionally, states can do a lot of things within their own boundaries to address greenhouse gases,” Barry Rabe, a professor of environmental policy at the University of Michigan, told Yahoo News. “We’ve seen this now for about a quarter-century — some states have tried a pretty wide range of efforts, for the most part working on their own, although in a few cases working together across state borders or boundaries. So I would say the sky's the limit.”

Gavin Newsom
California Gov. Gavin Newsom. (Hans Gutknecht/MediaNews Group/Los Angeles Daily News via Getty Images)

Rabe sees the potential for a boom in state-level climate action in response to federal inaction, especially if Republicans gain control of one or more houses of Congress in the upcoming midterm elections.

“We’ve tended to see surges of state interest and involvement that kind of coalesce with periods when federal commitment seems to be waning,” Rabe said. “That was true of the George W. Bush years, it was certainly true of the Donald Trump years and maybe that becomes true after the election, if Congress shifts toward Republican power — and especially given the possibility that the [Supreme Court] might put real restrictions on what the executive branch of the federal government, in this case the Biden administration, might do.”

One major option that states possess to regulate greenhouse gas emissions is the power to dictate the sources of energy used by their electric utilities.

“Most energy policy decision making in the United States is done at the state level, not at the federal level and not at the local level,” Hal Harvey, CEO of Energy Innovation, a San Francisco-based energy policy research firm, told Yahoo News. “The states control the electric utilities, through their public utilities commissions. More than 40% of carbon in the country goes through monopoly pipes and wires, and — since they’re physical monopolies — they need public regulation, and that’s done through public utility commissions. So they decide whether your monthly bill goes to coal, gas or to various renewables.”

Thirty-one states and Washington, D.C., have used that authority to set standards for how much of the state’s electricity must come from clean sources by a certain time. Last week, Newsom requested that the California Air Resources Board examine whether and how it could become carbon-neutral by 2035, 10 years ahead of the state’s current target, and he asked the California Public Utilities Commission to set a more ambitious goal in cutting the state’s emissions by 2030. Local environmental activists have a number of additional suggestions, including moving up California’s goal of a 100% clean-energy portfolio from 2035 to 2030.

There are a number of ways that states can shape transportation emissions as well, such as investing more in public transportation or increasing gasoline taxes. But even green-minded governors are leery of charging drivers more, especially when gas prices are high. New York Gov. Kathy Hochul initiated a gasoline tax holiday for the rest of the year, and Newsom proposed sending $400 debit cards to the owner of every car registered in the state to offset pain at the pump, but the Legislature replaced it with a tax credit for filers making less than $125,000, or $250,000 per couple.

Fuel prices at a Shell station in Menlo Park, Calif.
Painful fuel prices at a Shell station in Menlo Park, Calif. (David Paul Morris/Bloomberg via Getty Images)

“The power sector is a really interesting example of how states have been pretty active,” Rabe said. “I think other sectors like the transportation sector have been more of a struggle for states to figure out how to discourage fossil fuel use. ... I think it does become politically more salient or sensitive when you start talking about something as personal as driving.”

But states with the political will would have plenty of levers at their disposal, Rabe noted, including state subsidies to purchase electric vehicles, investment in mass transit and even lower speed limits, because fuel economy is best when cars are running between 30 and 50 mph.

California has long led the federal government in dealing with emissions from cars: It is the only state that is able to set stricter auto emissions standards. Twelve other states and Washington, D.C., follow the Golden State’s rules as well.

“When [Newsom] stood next to the wildfires that were burning a couple of years ago and said, 'We’re going to make sure 100% of the new cars sold in California are zero-emissions vehicles by 2035,' that was one of those moments where it kind of shifted the ground, and it was following that that the automakers started to come out with their own goals,” Laura Deehan, state director for the advocacy group Environment California, told Yahoo News.

Now, Deehan said, Newsom should develop the complementary infrastructure needed for an electric vehicle fleet, such as building over 1 million charging stations in the state, which currently has fewer than 100,000.

Similarly, for an all-clean energy grid to keep the lights on when the sun isn’t shining and the wind isn’t blowing requires more battery capacity to store power from rooftop solar arrays. Deehan said California could embark on a tax incentive program for widespread battery adoption, modeled on the state’s successful Million Solar Roofs Initiative launched under former Gov. Arnold Schwarzenegger.

States also set building codes, which Harvey said “create the long-term energy consumption patterns or emissions patterns” because they determine everything from the energy efficiency of homes and businesses to whether heat will be provided by fossil fuels.

Last Tuesday, Hochul signed a package of bills designed to boost clean-energy development and energy efficiency, including increased efficiency standards for appliances and a requirement that New York’s Public Service Commission enable thermal energy networks that can provide heating and cooling services to multiple buildings, which would be more energy-efficient than the status quo, in which every building must have its own heating and cooling system.

Solar panels are installed on the roof of a home in San Jose, Calif.
Solar panels are installed on the roof of a home in San Jose, Calif. (David Paul Morris/Bloomberg via Getty Images)

When the Supreme Court ruling was released, Hochul condemned it as “a major setback in our fight against climate change,” and she pledged to take more aggressive action in her state.

“New York is once again in the familiar, but unwelcome, position of stepping up after the Supreme Court strikes a blow to our basic protections,” Hochul said in a statement, referring to the flurry of state-level activity that followed the court’s ruling a week before, eliminating constitutional protections for abortion rights. “We will strengthen our nation-leading efforts to address the climate crisis, redouble efforts with sister states, build new clean energy projects in every corner of the state, and crack down on pollution harming the health of many New Yorkers.”

But some New York climate activists fault the governor for not going further. The state Legislature passed a moratorium on new fossil-fuel-powered cryptocurrency mining operations, which contribute to climate change due to their massive energy requirements, but Hochul hasn’t signed it. Asked recently about the bill, she said, “It’s very much under consideration.”

“Governor Hochul is trying to put lipstick on a pig by hyping up these bills as major action,” wrote Pete Sikora, the climate and inequality campaigns director at New York Communities for Change, a progressive advocacy organization, in an email to Yahoo News. “With the feds screwing all of us and going backwards, it’s vital for blue states, especially California and New York, to step up. Yesterday, the Governor once again sent a message that the status quo will prevail as she rejected calls for a special session on climate in the wake of the horrid [Supreme Court] decision.”

Although Hochul proposed to ban natural gas hookups in new buildings — this followed a law doing the same in New York City but would be the first of its kind for a state — it did not pass the Legislature. Sikora blamed the governor in part, complaining that she “didn’t put the pressure needed on the Assembly to get it done.” Sikora said the same about a bill (which also died in the Assembly) that would allow the New York Power Authority to increase the number of its directly owned renewable electricity-generation facilities.

The governor’s office did not respond directly to Sikora’s criticism, but it told Yahoo News that Hochul has embraced an array of climate initiatives, including five large offshore wind projects currently in the works.

New York Gov. Kathy Hochul
New York Gov. Kathy Hochul at a recent demonstration in New York City against the Supreme Court's decision on abortion rights. (Spencer Platt/Getty Images)

A few other governors, all Democrats, pledged in the wake of West Virginia v. EPA to go further and faster on reducing emissions.

“This decision makes it clear that we’ll have to accelerate our efforts when it comes to climate change and pollution,” said Washington Gov. Jay Inslee.

But some knowledgeable observers have been giving a reality check to anyone who hopes that states throughout the country will adopt new climate policies. There are 23 states where Republicans control both chambers of the legislature and the governorship, and only 14 Democratic trifectas. There is also no guarantee that courts won’t block some state actions. Last Friday, a state court sided with the coal industry and blocked Pennsylvania from participating in the Regional Greenhouse Gas Initiative, a program of Northeastern states jointly reducing energy sector emissions through carbon pricing.

“I’m not sure that we’re going to actually see a huge shift in a number of state policies in the next year or two," said Rabe, "because all the state forecasts suggest state legislative and gubernatorial races are not going to deliver huge shifts, and the kind of partisan divides we see on climate federally also apply in a great many states.”

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